IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT KNOXVILLE JANUARY 2000 SESSION

STATE OF TENNESSEE, * C.C.A. # E1999-00804-CCA-R3-CD Appellee, * ROANE COUNTY VS. * Hon. E. Eugene E blen, Judge RALPH DEWAYNE MOORE, * (Restitution) Appellant. *

For Appellant : For Appellee : Joe Walker Paul G. Summers District Public Defender Attorney General and Repor ter Bernard R. Sargent Assistant District P ublic Defender Patricia C. Kussman P.O. Box 334 Assistant Attorney Gener al Harriman, TN 37748 Criminal Justice Div ision (on appeal) 425 Fifth Avenue North Second Floor, Cordell H ull Building Walter Johnson and Nashville, TN 37243-0493 Roland Cowden Assistant District Public Defenders J. Scott McCluen P.O. Box 334 District Attorney General Harriman, TN 37748 P.O. Box 703 (at hearing) Kingston, TN 37763-0703 D. Roger Delp Asst. District Attor

ney General P.O. Box 703 Kingston, TN 37763-0703

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE 

# FILED
February 23, 20

00 Cecil Crowson, Jr. Appellate Court Clerk1 On u nrela ted c harg es, th e trial c ourt a lso se nten ced the d efen dan t to thirt y (30) d ays fo r diso rder ly condu ct, eleven (1 1) mo nths an d twenty-nin e (29) da ys for ass ault, and on e (1) year in th e state penitentiary for reckless endangerm ent. The reckless driving and disorderly conduct sentenc es were to run concurr

ent withthe reckless end angerment sentence, with the assault sentence runn ing conse cutive ther eto, for an effective s entenc e of one year, eleven mon ths and twenty-nine (29) days

. 2 OPINION The defendant, Ralph Dewayne M oore, was indicted for dr iving under the influence of an intoxicant and l eaving the scene of an accid ent. By agreement of the state, the defendant entered a plea of gui lty to reckless dr iving; the second charge was dismissed. As a part of the agreement, the defenda nt stipulated that his reckless driving

sentence would "include any restitution due to Shelby Gann." The trial court imposed a sentence of six (6) months, suspended all but se ven (7) days, 1 and ordered restitution to M s. Gann in the amount of $500.00.

The only issue presented in this appeal of right is w hether the trial court erred by orderi ng restitution.

We affirm the judgment of the trial court.
At the restitution hearing , Ms. Gann testified that on Januar y 11, 1997, she and her husband drove to the Walnut Hill boat ramp in Harriman, w here they encountered the defendant. The defendant and Ms. Gan n's husband were engag ed in an argument when the defendant then got into his vehicle and inte ntionally struck the Ganns' pick-up truck twice. According to Ms. Gann, the defendant first struck the Gann vehicle head-on and then backed up and struck th e door on the driver's side.
Ms. Gann's testimony was corroborated in part by the preliminary hearing testimony of Harr iman Police Department Officer M ike Capps. Officer Capps testified that he responded to a call regarding an accident at th e Walnut Hill boat ramp and that he arrived in time to observe the defendant l eaving the scene. The officer followed the defendant to a nearby residence and then confronted the defendant, who admitted to drinki ng and driving. The defendant also acknowledged3 having been involved in an accident with the Ganns, but denied that he intentionally struck their vehicl e. Officer Capps arrested the defendant for DUI and leaving the scene of an accident resulting in damage in excess of $400. See Tenn. Code Ann. § 55-10-102(b)(2).

After the plea agreement, the tri al court was unable to pr oceed with a scheduled sentencing hearing because the defen dant had failed to contact his probation officer. Thus, a pre-sentence rep ort had not been prepared. Because Shelby Gann and her husband w ere present, however,the trial court conducted a hearing on "any restitution due to Shelby Gann." Ms . Gann was the only w itness. She testified that she and her husband purchased the pick-up truck for approximately $1,500.00 on the date of the accident. She stated that the truck was not driveable immediately after the incident and that it was worth approximately $500.00 at that point in time. She s old the truck shortly

after the incident for between $200.00 and $250.00. The defendant cr oss-examined Ms. Gann on her failure to produce any documentation of ownership of the pick- up truck, but did not question her as to the amount of the d amage to the truck. The defendant did not offer any proof.
On appeal, review of the pr opriety of the trial cour

t's award of restitution must be de novo with a presumption that the determination made by the trial court is corr

ect. Tenn. Code Ann. § 40-35-401(d) ; State v. Johnson , 968 S.W.2d 883, 884 (Tenn. Crim. App. 1997). In sentenci ng a defendant to probation, a trial court may, as a

condition of the probation, req uire restitution to the v ictim of the offense for any pecuniary loss. Tenn. Code Ann . § 40-35-304(a). The term pecuniary loss incl udes "all special damages . . . as substantiated by ev idence in the record." Tenn. Code Ann. § 40-35-304(e)(1).

The defendant asserts that the trial court erred by orderi ng restitution in the amount of $500.00 because the state fail ed to prove that Ms. Gann w as the owner of the truck. In our view, the claim i s without merit.4 Before addressi ng the issu e of owne rship, th is court wou ld observe that as a part of the plea agreement,the defendant stipulated that Ms. Gann was the proper party to rece ive restitution for the damage. Our information is that the agreement specifically identified Ms. Gann as the recipient of any restitution. Had the defendant desired to contest the pr opriety of Ms. Gann as the r estitution recipient, he should have specifically reserv ed that question. The wordi ng of the agreement implies an entitl ement to Ms. Gann. No proof contr adicts that.
Notwithstanding the te rms of the plea agreement, there i s sufficient evidence, in our assessment, to support a finding that Ms. Gann had an ownership interest in the pick-up t ruck and, therefore, was entitled to testify to its value under Rule 701(b) of the Tennessee Rules of Evidence. The testimony that she and her husband owned the truck is unrefuted. Furthermore, the tri al court was entitled to rely upon Ms. Gann's te stimony to establish ow nership of the truck. See State v. William T. Cowart , No. 01C0 1-9508- CC-00251 (Tenn. Cr im. App. at Nashvill e, Nov. 22, 1996) (noting that trial court properly relied upon testimony of victim to establish victim's ownership of damaged property).

Finally, there is ad equate evidence to support the amount of the restitution award ev

en if Ms. Gann's opinion testi mony concerning the v alue of the damaged pick-up truck is not considered. A trial court need not apply any particular formula or method in determining restitution. State v. Johnson , 968 S.W.2d at 886. Nor is it necessary

for the trial court to deter mine restitution in accor dance with the strict rules of damages appl ied in civil cases

. Id. at 887. Shelby Gann testified that she and her husband purchased the damaged pick-up truck for $1,500.00 the day of the incident and sold it shor tly thereafter, without driving it any further, for either $200.00 or $250.00. Using the $250.00 sale figure, the net loss on the pick-up truck was $1,250.00. In light of that evidence, the presumption that the trial court's o rder of restitution in the amount of $500.00 w as correct has not been ov ercome by any other evidence in the rec ord.5 Accordingly, the j udgment of the trial court is affirmed.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ Joseph M. Tipto n, Judge

_____________________________ James Curwood Witt, Jr., Judge